GILPIN v. JOYCE (59861)

FROM THE CIRCUIT COURT OF STAFFORD COUNTYJames W. Haley, Jr., JudgePresent: All the JusticesOPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.

The dispositive issue in this appeal is whether
a defendant who makes a general appearance without having been
served with process is entitled to assert the bar against
judgment provided by our Rule 3:3.

The parties have stipulated to the facts and
proceedings in the trial court. On June 20, 1996, Kimberley M.
Gilpin filed a motion for judgment seeking damages from Leslie
Mae Dailey and Kevin Charles Joyce for injuries Gilpin alleged
she had received in an automobile accident on June 23, 1994.
Gilpin did not request service of process on either defendant.

On October 30, 1997, Joyce, by counsel, filed a
"motion to dismiss" citing that part of Rule 3:3 which
provides:

No judgment shall be entered against a
defendant who was served with process more than one year
after the commencement of the action against him unless
the court finds as a fact that the plaintiff exercised
due diligence to have timely service on him.[1]

Joyce also filed grounds of defense, a
counterclaim arising out of the same automobile accident, a
certificate of service of interrogatories, and a motion to
produce. Joyce had never been served with a notice of motion for
judgment.

On December 1, 1997, the trial court granted
Gilpin’s motion for a nonsuit of her claims against Dailey. [2] On that same day, the trial court heard oral argument
on Joyce’s motion to dismiss. At that hearing, it was
stipulated that Gilpin had not exercised due diligence in order
to obtain service of process on Joyce. Thereafter, in accord with
a request from the trial court, the parties filed briefs stating
their respective positions on the issue of dismissal of
Gilpin’s action.

On May 29, 1998, the trial court entered an
order sustaining Joyce’s motion and dismissing Gilpin’s
motion for judgment with prejudice. We awarded Gilpin this
appeal.

"An appearance for any other purpose than
questioning the jurisdiction of the court—because there
was no service of process, or the process was defective, or
the action was commenced in the wrong county, or the like—is
general and not special, although accompanied by the claim that
the appearance is only special." Norfolk and Ocean View
Railway Co. v. Consolidated Turnpike Co., 111 Va. 131, 136,
68 S.E. 346, 348 (1910)(emphasis added). Joyce did not make a
special appearance. Rather, by filing a grounds of defense and a
counterclaim, Joyce made a general appearance in the trial court
proceedings. Indeed, on brief, Joyce concedes this is so. A
general appearance "is a waiver of process, equivalent to
personal service of process, and confers jurisdiction of the
person on the court." Nixon v. Rowland, 192 Va. 47,
50, 63 S.E.2d 757, 759 (1951).

In 1977, the General Assembly enacted Code
Sect. 8.01-277, which provides in pertinent part that:

A person, upon whom process to
answer any action has been served, may take advantage
of any defect in the issuance, service or return thereof
by a motion to quash filed prior to or simultaneously
with the filing of any pleading to the merits.

(Emphasis added.)

Under familiar principles, because this statute
is in derogation of the common law, we will strictly construe it.
By its express terms, this statute applies only where process has
actually been served on the defendant. Thus, this statute does
not permit Joyce to simultaneously make a general appearance and
assert the protection of the bar provided in Rule 3:3 because he
was not served with process. Joyce’s general appearance was
entirely voluntary.

We reach the same conclusion with regard to
Rule 3:3 under the circumstances of this case. By its express
terms, this rule applies only where there has been service of
process. As we have noted, Joyce made a voluntary general
appearance without having been served with process.

Joyce contends, however, that his general
appearance more than one year after the commencement of an action
should be equivalent to a service of process more than one year
after the commencement of an action. Thus, he asserts that he is
entitled to the protection of Rule 3:3. The bedrock of
Joyce’s position is that, because the trial court had not
obtained personal jurisdiction over him within one year following
commencement of Gilpin’s action, Rule 3:3 serves as an
absolute bar to any judgment being entered against him. We
disagree.

It is true that a voluntary general appearance
subjects a defendant to the jurisdiction of the trial court and,
thus, may be considered "equivalent to personal service of
process." Nixon, supra. However, unlike a
defendant who makes a voluntary appearance, a defendant actually
served with process is under a compulsion to make an appearance
or suffer a default judgment. Thus, in Gilbreath v. Brewster,
250 Va. 436, 463 S.E.2d 836 (1995), we held that the defendants,
who were actually served with process more than one year after
commencement of the action against them, were entitled to
dismissal of the claim against them with prejudice under Rule 3:3
while still maintaining a counterclaim and a third-party claim. Id.
at 441-42, 463 S.E.2d at 838.

The distinction between the facts in Gilbreath
and those in the present case is that in the former case service
of process was actually secured on the defendants and, thus,
their appearance was necessary to avoid default. Here, Joyce was
under no such compulsion. We believe that this is the very
distinction the legislature intended to create when it enacted
Code Sect. 8.01-277 permitting only a defendant who has beenactually served with process to raise specific
jurisdictional challenges prior to or simultaneously with the
filing of any pleading to the merits. This same distinction is
consistent with the express terms of Rule 3:3 and our holding in
this appeal.[3]

For these reasons, the judgment of the trial
court will be reversed, Gilpin’s motion for judgment will be
reinstated, and the matter will be remanded for a trial on the
merits of the motion for judgment and on Joyce’s
counterclaim.

Reversed and remanded.

FOOTNOTES:

[1]A similar provision appears in Rule
2:4 applicable to pleadings in chancery suits.

[2] On brief, Gilpin correctly states that she was
prohibited from taking a nonsuit of her claims against Joyce
because of his counterclaim against her. See Code
Sect. 8.01-380(C).

[3]We recognize that in Dennis v.
Jones, 240 Va. 12, 393 S.E.2d 390 (1990), we held that where
substituted service of process through the Department of Motor
Vehicles was ineffective and, thus, personal jurisdiction was not
obtained over the defendant, the resulting default judgment would
be set aside and the motion for judgment would "be dismissed
under Rule 3:3 because it had been pending since 1987 and
defendant has not been served with valid process." Id.
at 20, 393 S.E.2d at 395 (emphasis added). Unlike the present
case, in Dennis the plaintiff made an actual attempt to
serve process, and the defendant was subsequently required to
appear in order to contest the resulting default judgment against
her. Here, however, Joyce’s appearance was entirely
voluntary.